Sending a person to prison for five years for adultery does not appeal to common sense, Chief Justice of India Dipak Misra orally observed on Wednesday.
Adultery does not even qualify as a criminal offence, and is at the most, a civil wrong, the Chief Justice said while heading a five-judge Constitution Bench.
Chief Justice Misra said adultery has a civil remedy – divorce.
Question of consent
Firstly, an adulterous relationship is carried on with the consent of the woman. “If a third party attacks or molests the wife of another, it amounts to rape. Rape is an offence. But if a relationship is carried with the consent of the woman, how does it amount to an offence? If there is consent (between two adults), why punish the wife’s lover?” Chief Justice Misra asked.
The Constitution Bench was countering submissions made by the Centre, represented by Additional Solicitor General Pinky Anand, that adultery should continue to remain in the Indian Penal Code as it ensures the sanctity of the marriage and is for public good.
“Protecting marriage is the responsibility of the couple involved. If one of them fails, there is a civil remedy available to the other. Where is the question of ‘public good’ in a broken marriage? ” Chief Justice Misra asked Ms. Anand.
Justice D.Y. Chandrachud observed that there may be cases in which adultery is a consequence of a broken marriage. Justice Indu Malhotra pointed out that there may be cases in which the couple would have been staying separate for decades, waiting for a divorce decree, and the husband could foist a case of adultery on his estranged wife’s paramour to trouble her.
Section 497 gives a husband the exclusive right to prosecute his wife's lover. A similar right is not conferred on a wife to prosecute the woman with whom her husband has committed adultery. Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery. Further, Section 497 the law does not take into account cases where the husband has sexual relations with an unmarried woman.
Ms. Anand said the government is considering making adultery gender-neutral. But the court countered what good would that do if a consensual relationship, though adulterous, between two adults is still considered a crime.
Sancity of marriage
Justice Chandrachud asked the Centre why it was always the woman’s burden to maintain the “sanctity of marriage”
“You exact fidelity from the wife but not from the husband. A woman has to remain loyal, but there is no need for a man to be loyal to his wife. Sexual fidelity applies only to a married woman,” Justice Chandrachud addressed Ms. Anand.
“At the heart of this provision is the norm that a cuckolded husband can sue his wife’s paramour. In the 1860s, married women were considered the chattel of their husbands,” Justice Nariman interpreted the Victorian penal provision.
Chief Justice Misra said the apex court has to either strike down Section 497 IPC or leave it alone. It cannot read down the provision. “Section 497 IPC has to either go or stay. We cannot read it down… it (Section 497) is arbitrary,” Chief Justice Misra told Ms. Anand.
Justice Nariman said the court cannot agree with a provision that treats women like commodities.
The Constitution Bench, also comprising Justice A.M. Khanwilkar, is hearing a petition filed by Kerala-based Joseph Shine, represented by advocates Kaleeswaram Raj and Suvidutt M.S., to drop Section 497 from the penal code.
The Bench wrapped up the arguments and reserved the case for final judgment.